What are the pros and cons of Guardianship vs Power of Attorney?

We are in the process of applying for legal guardianship for my son who will be 18 in February. We've been told that we may be better off just getting a full POA. He has Autism, Apraxia, OCD, Epilepsy, SI, CP and smaller goodies associated with these. He should be able to hold some type of minor job, but... show more We are in the process of applying for legal guardianship for my son who will be 18 in February. We've been told that we may be better off just getting a full POA. He has Autism, Apraxia, OCD, Epilepsy, SI, CP and smaller goodies associated with these. He should be able to hold some type of minor job, but will never be able to live outside of a medically supervised setting.

We are very confused. If we have guardianship, will he still be eligible for SSI, medicare and other state/federal aids? If we have POA, will we be able to keep him on our family health insurance through my spouses employer? The ins now carries him as a dependent though 18 and as a student through 25 (he'll be leaving HS at 22).

I know there is way more involved in all of this, which is why we are asking advice from folks who've already been there. We have an appt with a lawyer, but she's only talking guardianship. Our son's autism therapist feels we may be better off with POA, which the lawyer never mentioned and we didn't even know existed. We would really like to know the pros and cons before our appt. Any advice would be greatly appreciated. Thank you.

Update: Thanks for the answers and well wishes received so far. If it helps any, he is not able to make appropriate decisions regarding his own medical care and barely understands how to make change for a dollar. To best ensure he's properly taken care of, we must have control of decisions since he does not. We are... show more Thanks for the answers and well wishes received so far. If it helps any, he is not able to make appropriate decisions regarding his own medical care and barely understands how to make change for a dollar. To best ensure he's properly taken care of, we must have control of decisions since he does not. We are trying to decide which way would be the most advantageous to him and his future needs. Thanks again.

Answers

Best Answer: I have two adult disabled children. I have guardianship over one and power of attorney with the other. They are very different people with very different disabilities.

My son is 26 and has Down syndrome and seems as if he is likely more like your son. I have his power of attorney. I would never consent to be is guardian. He is unable to make decisions independently and he understands this. So he seeks and takes my advice into strong consideration. He doesn't always make the same choice I would do, but he never makes a choice I am strongly against. A power of attorney preserves his rights as a independent adult - able to vote, enter into a contract, give blood, own a gun, marry, have children, etc. Not that he is necessarily going to do those things - but as adults those are our rights.

My 18 year old niece on the other hand has severe clinical depression, ADD, and is bipolar. When she recently attempted suicide, if it was her choice she would have come back home after wards as if nothing had happened. But because I am her guardian, I was able to place her voluntarily into an intensive residential psychiatric facility. And should I choose to take her out - it will be my choice. Versus had I had to force an involuntary commitment, which would not end when I wanted it to, but when the doctors wanted it to.

Simplified, the main difference to me between the two is that in the case of guardianship the rights of the adult are taken away. They are not up to the guardian to decide -they are gone. The guardian makes decisions the court allows them to make. (Such as how to spend money or which medical treatment to get.) So if you as a parent were OK with a decision your son made to enter into a sexual relationship with a girl, your son because of the guardianship would not be allowed to even if you agreed because he was no longer considered competent to make such decisions. And if the court or someone else dislike the way you were his guardian - his guardian could be changed. Just because you request it doesn't guarantee yo wil be the guardian now - or forever.

On the other hand with the power of attorney, you still have all the rights to make the same decisions you would as a guardian, but he loses none of his civil rights. It is essentially a contract between you and your son that he says he is willing to give you the responsibility to make specific decisions in particular events.

But the fundamental difference is - Guardianship is court ordered and only a court can reverse it. Power of attorney is an agreement between you and your son and can be terminated at will. (And you can pick up POA papers at Office Max for $19.95 and do it yourself.)

Until I came to parent my niece who is both cognitively impaired and mentally ill, I would have said no one ever needs a guardian, but she does, and I hope it is only for a few short years until she matures a bit more. I doubt very much from what you have said that your son needs a guardian.

Added: My son has a tested IQ of 43. He cannot read, do any math, or understand medical consequences. That does not make him incompetent to decide that he trusts me to help him make - or make - the decisions necessary for him to live his life well. Unless you and your son have an adversarial relationship - there is no reason for a guardianship. Whatever you can accomplish with a guardianship you can accomplish with a power of attorney. The difference is that you and your son maintain control and you have not given the courts control. When my son needs a medical procedure, we both listen while the doctor explains it. I then rephrase what I heard and say If you do A this will happen, if you do B this will happen. I think A is the best choice to make because of Q. Do you agree? He agrees. He maintains his independence. Or if he says, you decide Mom. He maintains his independence. And he maintains his choice to have you as his decision-maker.

Here's another example that might hit closer to home. What if the medical facility your son was in was not a place you felt he was safe. What if you decided that you wanted to bring him home and look for a better place. What if the medical facility petitioned the court and said that they felt his guardian was doing him a disservice (because you are now a guardian - and not a parent) and the guardian should be changed. And so the facility you disapproved of became his guardian. Now you have no ability to visit him, or have any say in how he is treated. And if you think it doesn't happen - sadly it does - and it happens far too often because parents thik they are protecting their child by becoming their guardians - when often they are doing exactly the reverse - they are throwing them to the wolves.

POAs have to be assigned when the person is still competent. A POA acts as an agent to carry out the wishes of the person. The POA does not decide what the wishes are, unless the person is deemed incompetent.
Guardians are not generally assigned until a person has been deemed incompetent. At this point, they are no longer able to assign a POA. The process can be expensive and the guardian must be approved by the court.

No. You can have one or the other, but not both. If you want your new husband to adopt your daughter, then her biological father would have to agree to allow that. If he won't agree, then you might as well forget about it because it's not going to happen, period. But if he does agree to give up his parental rights, then he's also free of any obligation to pay child support, now or ever, and that's only fair. So take your pick.

Teddy's answer is pretty much right on. (I'm not sure what motivates some people to give thumbs down.) Your son would have to have capacity to execute a power of attorney for it to be valid . With a POA, he delegates decision-making authority and can revoke it at any time. Guardianships (or conservatorships in some states) are more of an infringement on personal autonomy. In some states, there are "limited" guardianships or conservatorships, which allow the individual to retain decision-making authority in some areas.

A gurardianship or POA won't affect your son's right to receive benefits.

I do recommend you talk to an attorney who handles such matters. You'll also likely want to talk about estate planning and possibly setting up a special needs trust. You might start with the protection and advocacy agency in your state. This disability rights organization may be able to more fully describe the different alternatives available and the implications of each. Go to this website and then find the P&A agency for your state with the "Get help in your state"pull-down menu: http://www.ndrn.org.

RE :What are the pros and cons of Guardianship vs Power of Attorney?
We are in the process of applying for legal guardianship for my son who will be 18 in February. We've been told that we may be better off just getting a full POA. He has Autism, Apraxia, OCD, Epilepsy, SI, CP and smaller goodies associated with these. He should be able to hold some type of minor job, but will never be able to live outside of a medically supervised setting.

We are very confused. If we have guardianship, will he still be eligible for SSI, medicare and other state/federal aids? If we have POA, will we be able to keep him on our family health insurance through my spouses employer? The ins now carries him as a dependent though 18 and as a student through 25 (he'll be leaving HS at 22).

I know there is way more involved in all of this, which is why we are asking advice from folks who've already been there. We have an appt with a lawyer, but she's only talking guardianship. Our son's autism therapist feels we may be better off with POA, which the lawyer never mentioned and we didn't even know existed. We would really like to know the pros and cons before our appt. Any advice would be greatly appreciated. Thank you.
Update: Thanks for the answers and well wishes received so far. If it helps any, he is not able to make appropriate decisions regarding his own medical care and barely understands how to make change for a dollar. To best ensure he's properly taken care of, we must have control of decisions since he does not. We are trying to decide which way would be the most advantageous to him and his future needs. Thanks again.
7 following 5 answers

I can not know your pain or joy. A prayer for you all.
I would think a few phone calls would tell me what I want to know.
Most lawyers have a free first consultation.
Call her and let her explain her position and you may see why she didn't mention it. You can call another one and ask them if they handle these cases and what their position is on the difference.
Let the one with the best advice have the work.
You should also call social security and ask what their definition of the two is.
I hope some one here will offer you some real good advice.
God Bless